Glimmer of hope for 10,000 refugees left stranded by Australia's inaction

Glimmer of hope for 10,000 refugees left stranded by Australia's inaction

A federal court verdict exposed how valid citizenship applications from people who arrived by boat were shunted into a drawer and ignored. Now the immigration department has to say what it is going to do about them

Kyar was overjoyed to the receive the letter, embossed with the coat of arms of Australia and the letterhead of the minister for immigration and border protection.

“On behalf of the Government and the people of Australia, I am pleased to inform you that your application for Australian citizenship has been approved,” the missive read.

“The final step in becoming an Australian citizen is to make a Pledge of Commitment at an Australian citizenship ceremony. You will not be an Australian citizen until you make the Pledge.

“Generally, your citizenship ceremony will be scheduled within six months from the time your application is approved.”

A Rohingyan man from Myanmar, Kyar (not his real name, which is being withheld to protect him and his family) had spent his entire life stateless – belonging to no place and welcome nowhere. But now he felt, finally, at the age of 44, and 25 years after fleeing his homeland, that he would finally have a country to call his own.

“I have never been a citizen of anywhere in my life,” Kyar tells the Guardian over sweet tea at a cafe near his home in western Sydney. “I have always been an illegal. I cannot describe the feeling of this letter. It felt like a new life to me, finally I could start my life, I could have a family, I could be safe and feel secure.”

Kyar carries the letter to this day, carefully folded up in his wallet.

It is dated 11 November 2014.

Still Kyar is not a citizen of this, nor any other country.

Still Kyar waits.

Kyar is one of 10,231 people living in Australia who have qualified for citizenship but who have been denied it because they came to the country as “undocumented arrivals”, the vast majority as refugees arriving by boat.

In December 2016 the federal court ruled the immigration department’s policy of putting citizenship applications from boat-borne arrivals “in a drawer” where they were ignored, was not lawful, and ordered that the applications be properly assessed.

The challenge brought by two applicants for citizenship, known as F and G, is being viewed as a test case for Kyar and thousands of others similarly denied the right to become citizens of their adopted country.

Kyar was forced to flee his village, near the city of Maungdaw in Myanmar’s westernmost state of Rakhine, in 1991.

He was 21 years old. His parents urged him to escape after two of his brothers were taken away by the country’s military and put to work in forced labour camps. One brother died, the family was later told. The other was never seen again.

The Rohingyan Muslim minority in Myanmar suffers extreme persecution at the hands of the country’s military government, which refuses to recognise them as citizens or allow them to vote. Rohingya, the government says, are Muslim Bangladeshi interlopers and have no place in the Buddhist-majority country – despite the fact many Rohingyan families have lived in Myanmar since before its independence.

Everywhere I have ever been in my life, I have always been illegal, I haven’t been recognised as a person

The government in Bangladesh, to where tens of thousands of Rohingya have fled, has even, in 2017, proposed an old policy of forcibly removing Rohingyans from the country and putting them on a remote island, Thengar Char, in the Bay of Bengal. The island is deserted and regularly floods at high tide.

From this, Kyar is grateful to have escaped. But he feels he is still running: “Everywhere I have ever been in my life, I have always been illegal, I haven’t been recognised as a person.”

His path to Australia was tortured and tortuous. “I was stranded in Malaysia for many years, but I was illegal, so I could not find a secure place to live. I had to take risky jobs, there was very little money, no safety equipment, I watched my uncle die in front of me when a building collapsed on him. But no one cares, nothing happens, because we are illegals. We are not real people in their eyes.”

He said Australia was never his intended destination, he only ever sought a country where he could be safe and a citizen. But the offer came to him of a place on a boat.

“It was a very small boat, only 11 people, but when I saw it I thought, ‘No way, that boat will sink in the waves.’ But I had no choice, I would die where I was, or maybe I had a 50-50 chance I would reach Australia and be safe. I took that chance.

“It was the choice for my life. There was no other future for me. If I could make it to become a citizen somewhere I can get married, I can have a family, I can make a normal life, something I had never had.”

Kyar arrived at Christmas Island in December 2009. After 11 months in detention he was released into the community on a bridging visa. He was later recognised to be a refugee – having a well-founded fear of persecution in his homeland, to where he couldn’t be legally returned – and granted permanent protection by Australia.

“I can’t express what that felt like. It was such an amazing feeling. I felt like I had been reborn into a new life.”

Kyar has worked all of the time he has been living in the Australian community. He’s now employed in a factory in Sydney’s west and sends money home to his family in Myanmar.

Money is able to defy the repressive government regulations in Myanmar: for a substantial payment Kyar was able to have his nieces and nephews enrolled in school.

“As a Rohingya in Myanmar everything is very expensive, for medical expenses, to be allowed even simple education, it all costs money, so I have become a new hope for my family. I can create a new future for them.”

Religious groups could have Australian visas cancelled under proposed powers for Dutton

Read more

At the expiration of his four-year residency requirement, Kyar applied for citizenship. As the well-worn letter in his pocket attests, he was accepted to become an Australian in November 2014.

Seemingly liberated by his impending citizenhood, and holding permanent residency in Australia, Kyar was able to travel several times to Bangladesh, where thousands of his community now live in exile in cramped and muddy refugee camps. There, he married and he has fathered two children: a boy, now three, and a daughter, who is just over a month old.

As a citizen, he could live with his family in Australia. But until that moment arrives, they remain forced apart.

“It is unbearable, being apart from them. I have missed seeing them grow up, I have missed all of those days with them.”

The court ruling has brought hope for a resolution and a new beginning.

‘Undocumented arrival drawer’

In December evidence before the federal court revealed that the immigration department kept a “drawer” – physical or metaphorical – where valid applications for citizenship from refugees who had arrived by boat were put so they could be ignored, sometimes for years. The files of both F and G were marked: “UNDOCUMENTED ARRIVAL: Filed Undocumented arrival drawer”.

F and G had qualified for citizenship but were never allowed to swear their oath. The court found that the immigration minister had unreasonably delayed making a decision on their citizenship, before refusing them the right to become Australians.

The minister’s actions were invalid, Justice Mordecai Bromberg ruled.

“There is no evidence before me that demonstrates that any attempt was made by staff of the citizenship branch to verify whether F and G were in fact ‘undocumented arrivals’ … I find that the department took no steps to progress F’s or G’s applications for some 14.5 months,” Bromberg said in his judgment.

The judge was excoriating about the department’s deliberate inaction. “I am not able to exclude the real possibility that for a very substantial period of time, F and G’s applications were simply left aside and forgotten. In essence, the evidence called by the minister has failed to explain why it was that F and G’s applications sat in the ‘complex cases’ queue without being reached for 14.5 months.”

The department told the court that the applications of boat arrivals were set aside as “complex cases”. But the court found that 96% of other complex cases were completed without substantial delay.

“That evidence provides a foundation for thinking that in terms of being reached for processing, F and G’s applications were passed over by many thousands of other ‘complex’ applications,” Bromberg said.

Peter Dutton, the immigration minister. The immigration department has until 28 February to respond to a federal court decision that it was wrong to consign F and G’s cases to an ‘undocumented arrival drawer’. Photograph: Mick Tsikas/AAP

The court heard from the Refugee Council of Australia, which brought the case. It said that the delay in processing citizenship applications appeared discriminatory, in that valid applications were disregarded simply because their applicants had arrived in Australia by boat. The refugees convention, to which Australia is a party and legally bound, prohibits discrimination against a person based on their method of arrival in a country.

The Refugee Council said the department had deliberately “dragged its feet” on granting citizenship, denying people the right to be reunited with their families, and leaving relatives in “prolonged situations of danger and persecution”.

“Our government has denied them basic rights to stability and, importantly, family reunion, through slow and targeted decision-making,” said the council’s acting chief executive, Tim O’Connor. “Today’s ruling recognises this injustice and represents a first step towards a resolution for thousands and a chance for them to start to rebuild their lives.”

I want my children to grow up without having always to worry about being tortured physically or mentally

Kyar

F and G’s cases were taken up by the department just weeks after they launched the court challenge to the delay: the minister then refused them citizenship. Bromberg found that was an invalid and unreasonable decision.

While the ruling applies only to F and G, their cases were brought before the bench as test cases for 10,231 people the department has confirmed as living in the same limbo.

The government has until 28 February to respond to the court’s decision. Both the Department of Immigration and the office of the immigration minister, Peter Dutton, refused to comment on the court judgment, or the government’s “drawer” policy for certain citizenship applications.

However, the Guardian understands the immigration department intends to reassess its policy and progress the citizenship applications of boat arrivals in accordance with other applications.

Should the government choose to fight each individual citizenship application in court, lawyers across the country have offered to act pro bono to pursue each claim.

Revealed: the systemic exploitation of migrant workers in Australia

Read more

The Guardian has been told the stories of dozens of Australian residents who have completed all required identity and security checks, have been found to be refugees owed protection, have completed the Australian residency requirements, and passed the country’s citizenship test, only to be denied citizenship at the last hurdle: the ceremony.

In several cases, people have received text messages the day before their scheduled ceremony telling them their citizenship conferral – the ceremony still went ahead without them – was cancelled without explanation.

After a quarter of a century displaced from his homeland, Kyar is, at turns, philosophical and furious about the slow walk to freedom, and the caprice of the system that controls his future.

Seven of Kyar’s 11 boatmates to Australia have been made citizens, he says. “I don’t know why they are chosen, and not me, not others,” he says, shrugging.

But he says fatherhood has brought new urgency to his desire for a permanent, safe home.

“For the last three years, I have been so depressed because of all of this. My children are illegal where they are, and I don’t know what will happen to them. The police could take them away. I can’t protect them.

“I want them to grow up without having always to worry about being tortured physically or mentally, something I never had in my life.”

Kyar tells the Guardian his search for sanctuary is now not for him, but for the next generation.

“I am over 40 years old now, half of my life is over, but now it is for my children. If I am able to give them a future where there is no fear, where there is no harm, I will be happy in my life.”